Two months ago, "The Locker Room" highlighted a Commentary magazine article that questioned so-called "efficiency gap" analysis as a tool for helping judges determine whether lawmakers have engaged in "too much" partisan gerrymandering when they draw election district maps.
The latest issue of Commentary features my letter responding to the article from Syracuse law professor Tara Helfman. The original version of the letter is printed below. Follow this link for the slightly edited Commentary version of the letter, along with Helfman's courteous and informative reply.
Thank you to Tara Helfman for highlighting recent developments in the complicated struggle over the future of electoral gerrymandering (“Is the Gerrymander on Its Way Out?,” January 2017). Some additional facts might help readers cultivate an even better understanding of the issue.
First, Helfman notes U.S. Supreme Court justices’ “palpable” frustration during oral argument over recent redistricting cases from Virginia and North Carolina. To some extent, those justices have only themselves to blame. That’s because they have not set a clear standard differentiating an acceptable amount of partisanship in drawing election maps from unconstitutionally excessive partisanship.
Helfman’s article notes that the Supreme Court “declined to invalidate” a “meandering Pennsylvania redistricting map” in 2004. Left out of her analysis was the fact that five of the nine justices might have struck that map down had they agreed on a means. While the court’s so-called conservative bloc agreed with the late Justice Antonin Scalia that partisan gerrymandering was a political issue that courts ought not address, the opposing liberal bloc disagreed. It proposed potential tests for determining whether a partisan gerrymander was unconstitutional.